Published by the DOI Departmental Consulting Archeologist/NPS Archeology Program, National Park Service, Washington, DC, September
1991.

This Technical Brief describes the legal background
and case histories for archeological protection. Its purpose is to provide
a convenient summary of archeological protection and preservation as
an issue in law and jurisprudence that will be of use to jurists who
may need assistance in casework.

Portions of this technical brief depart from the
standard for reference citations, i.e., American Antiquity style, in
favor of endnotes and legal usages, standard legal citation format,
which are more helpful to attorneys and judges. Also, the standardized
Federal government spelling of "archeology" is used throughout, except
in titles and direct references to the Archaeological Resources Protection
Act where it is spelled "archaeology."

Introduction

Despite a variety of Federal, Tribal, State and even
local laws passed over the last 85 years, the amount of looting and
vandalism of irreplaceable archeological resources continues to increase.
Archeological sites are located on both public and private lands. Many
of the areas are remote and difficult to patrol, 1
although considerable numbers of archeological sites are also to be
found in more densely populated areas such as New England, the Midwest,
Southeast, and the West Coast.

This technical brief examines: (1) the current profile
of civil and criminal actions brought since passage of the Archaeological
Resources Protection Act (ARPA);2
(2) potential areas of application for ARPA; (3) other laws and regulations
that afford protection to archeological resources; and (4) case patterns
through an overview of LOOT information currently available.

History
and Purpose

Statutes
Prior to ARPAFederal preservation law dates from the early 19th century,
when its primary focus was to document information and collect items
of importance in connection with national public figures and historic
military events. 3
The extended efforts beginning In the mid-19th century to save George
Washington's home, Mt. Vernon, and protect the archeological remains
and monumental architecture of Southwest sites such as Casa Grande Ruins
exemplify such early preservation measures, most of which resulted in
cases involving the taking of public property for preservation or beautification
purposes. 4
The first case in which the Supreme Court recognized that the Federal
government had the power to condemn private 5
property in order to preserve an historic site was United States v.
Gettysburg Electric Railway Co. (1896), which allowed the creation of
Gettysburg Battlefield Memorial. 6
In its decision the Court refused to adopt a narrow constitutional interpretation
offered by the railroad, which would have placed the condemnation of
its property outside the definition of a taking for a "public purpose"
necessary for government condemnation of property. The Court did not
discuss whether the government could utilize regulatory schemes to facilitate
historic preservation, nor did it address the question of whether the
government could extend its efforts to condemn and acquire sites with
no apparent historical connections--issues which would be extremely
important in the future development of preservation law.

Around the turn of the century, local governments began
to adopt a European approach to land use and zoning regulation for the
purpose of preserving the "local character" of their towns. The City
of Baltimore, for example, adopted a 70-foot maximum height regulation
to maintain the character of its residential and commercial areas. A
similar regulation was adopted the same year by the city the of Boston.
The Baltimore regulation was challenged in Cochran v. Preston (1908)
7
and upheld by the Court of Appeals on the ground that it was designed
to reduce fire hazards in addition to containing an aesthetic preservation
goal. The Boston ordinance was also challenged, and ended up before
the Supreme Court in 1909. 8
The Court upheld the ordinance as being reasonably related to public
health and safety, primarily in the area of fire prevention. Still,
the Court did not address the issue of whether government regulation
could be justified under constitutional substantive due process standards
for preservation reasons. It would be 1978 before that question would
be answered in the affirmative.9

Antiquities
ActFederal policy to preserve historic and prehistoric
sites on Federal lands was first embodied in the Antiquities
Act of 1906, 10
which authorizes a permit system for investigation of archeological
sites on Federal and Indian lands, and gives the President the power
to establish national monuments on Federal lands for the purpose of
protecting historic landmarks, historic and prehistoric structures,
and other objects of historic or scientific interest. The Antiquities
Act specifies protection of antiquities on all
lands owned or controlled by the Federal government
and gives authority for
their proper care and management to the Departments having jurisdiction.
This means that Indian lands, forest preserves, and military reservations
are included. The statute has no felony provisions, and penalties limited
to criminal misdemeanor charges with fines up to $500 and/or 90 days
imprisonment, are imposed upon those "who shall appropriate, excavate,
injure, or destroy any historic or prehistoric ruin or monument, or
any object of antiquity situated on lands owned or controlled" by the
Federal government unless they have a permit 11 issued through
the Secretary of the Department having jurisdiction. 12 Previously,
specific legislative authorization was required for each designation.
Although the authority to regulate the excavation or collection of archeological
remains from federally controlled lands now rests principally with ARPA,
monuments still are created under the Antiquities Act, and that statute
limits monuments to "the smallest area compatible with the proper care
and management of the objects to be protected." 13

Historic
Sites ActThe
Historic Sites Act, 14
enacted in 1935, declared a Federal policy to preserve historic and
prehistoric properties of national significance. It gives the Secretary
of the Interior authority to make historic surveys, as well as other
broad powers to protect historic properties and establishes the National
Historic Landmarks Program. This legislation sets standards for identification
and preservation of National Historic Landmarks. It does not contain
any sections that address enforcement. 15

National
Historic Preservation Act (NHPA)NHPA
was originally passed by Congress in 196616
and established a Federal policy of cooperation with other nations,
Tribes, States, and local governments to protect historic sites and
values. Together with its implementing regulations, NHPA authorizes
the National Register of Historic Places, 17
creates the Advisory Council on Historic Preservation, 18
provides further considerations for National Historic Landmarks, 19
and creates procedures for approved State and Local Government Programs.
20
The National Register of Historic Places criteria for evaluation of
properties to be nominated are found at 36 CFR Part 60.4. Consideration
is given to "districts, sites, buildings, structures and objects that
possess integrity of location, design, setting, materials, workmanship,
feeling, and association" and that are (a) related to events that have
made a significant contribution to the broad patterns of our history;
or that are (b) associated with the lives of persons significant in
our past; or that (c) bear a pattern of distinctive characteristics
of historic, architectural, archeological, engineering or cultural significance;
or that (d) have yielded or may in the future yield important information
as to our history or prehistory.

Regulatory provisions accompanying NHPA require the
State Historic Preservation Officers (SHPOs) to prepare and implement
State historic preservation plans.21
Protection of identified historic sites is facilitated through implementation
of NHPA Section 106 review, which is a five-step process designed to
ensure that historic properties arr considered during the planning and
execution of Federal projects.22

The major amendments to NHPA, passed in 1980, 23
provide support for archeological resources protection because they
codify those portions of Executive Order 11593 24
requiring Federal agencies to develop programs to inventory and evaluate
historic resources. The amendments also authorize Federal agencies to
charge reasonable costs for such activities to Federal permittees and
licensees. 25

Archeological
and Historic Preservation Act 26
(AHPA)Though it has been called the Archeological Recovery
Act and the Reservoir Salvage Act, AHPA
has no official short title. Most importantly, it requires Federal agencies
to preserve historic and archeological data, including the objects and
materials collected from archeological sites, which may otherwise be
lost or destroyed as a result of "any Federal construction project or
federally licensed activity or program." Up to 1 percent of project
funds may be appropriated to conduct archeological data recovery activities,
in addition to any costs for archeological work required for project
planning. 27

Archaeological
Resources Protection Act (ARPA)Of the laws currently in place for protecting archeological
resources, one of the most far-reaching is the Archaeological
Resources Protection Act of 1979 (ARPA)28
with its subsequent amendments of 1988. 29
This is particularly true since adoption in 1984 of uniform regulations
by which many aspects of ARPA are enforced. 30
Under Section 6 of ARPA the first significant criminal penalties can
now be imposed for the vandalism, alteration, or destruction of historic
and prehistoric sites 31
on Federal and Indian lands, as well as for the sale, purchase, exchange,
transport, or receipt of any archeological resource if that resource
was excavated or removed from public lands or Indian lands or in violation
of state or local law. The penalties include up to $250,000 in fines
and up to five years imprisonment. 32
In addition, ARPA provides civil penalties for the acts prohibited under
Section 6, as well as for violations of ARPA permits. 33
The penalties include the forfeiture of property used for illegal site
disturbances or destruction and forfeiture of illegally obtained artifacts.
34

The critical provisions of ARPA make it illegal to excavate
or remove any archeological resources from Federal or Indian lands without
a permit from the Federal land manager. Permits for archeological work
on Indian lands may be granted only after obtaining consent of the Indian
allottee or Indian Tribe owning or having jurisdiction over such lands.
One of the conditions for issuance of a permit is that the applicant
demonstrate that proposed activities will provide increased knowledge
of archeological resources. A primary purpose of the statute is to increase
the exchange of information and general communication among governmental
entities, professional archeologists, and the public. Finally, ARPA
requires uniform regulations to be promulgated by the Secretaries of
the Interior, Defense, and Agriculture and the Chairman of the Tennessee
Valley Authority. Federal land managers, as defined in ARPA, may promulgate
additional regulations, consistent with the uniform regulations, which
may be needed by their agencies.

Currently there are a few State statutes that address
protecting archeologically significant sites located on private lands
but there are no comparable Federal statutes. Unlike the European nations,
the United States has not embraced the concept of a national cultural
heritage law that protects significant resources within the boundaries
of private ownership of land.

Although the most recent amendments to ARPA will improve
the effectiveness of the anti-looting portions of the statute via interagency
cooperation, there are certain areas in which the only effective remedy
will be increased involvement of the law enforcement community. This
community includes local, State, and Federal law enforcement personnel,
attorneys, and the judiciary involved at each level of prosecution.
At present many of these individuals do not know that the statute exists,
or if they are aware of it, they still prefer to utilize more familiar
State and local laws that prohibit theft, vandalism, or trespass. Although
such laws do take care of some of the problems, they do not deal effectively
with the destruction of cultural resources and information because the
focus is in punishing specific common law offenses.35
Because these laws are also more familiar to the members of juries,
as well as the judges, who may be deciding the cases, prosecutors often
see a strategic advantage in presenting a cause of action that will
not be misunderstood.

When Congress passed ARPA in 1979, legislators and preservationists
hoped that it would result in a reduction of vandalism and looting of
the nation's prehistoric and historic archeological sites. They looked
to ARPA as a vehicle for education that would lead to a heightened public
awareness of the problem as well as provide a major deterrent to looters
and illegal commercial traffickers through its substantial penalty provisions.
36
This continues to be the case, as ARPA was strengthened by the 1988
amendments with requirements that Federal agencies develop plans for
surveying lands not scheduled for projects, develop and implement systems
for reporting and recording archeological violations, and develop public
awareness programs. The amendments also provide for a lower felony threshold,
reduced from $5,000 to $500 damage caused, and prohibit attempts to
damage archeological resources. 37
Today, the successful enforcement of ARPA depends upon a variety of
interrelated factors:

Education of the professional communities, including archeologists,
agency managers, law enforcement personnel, and jurists, particularly
in the areas of preservation law, policy and technology;

Education of the citizenry at large to foster awareness and appreciation
of both historic and prehistoric cultural resources and the importance
of protecting and preserving those resources;

A team approach to collection of data and evidence in investigative
casework;

Communication and cooperation among the agencies that, under the
statute, are responsible for the joint administration of the law,
including,

Effective monitoring of the condition of archeological resources
by land managing agencies, and

Effective cooperation between law enforcement and cultural resource
personnel in managing these resources; and

In addition to the statutes that specifically address
cultural resources preservation, other legislation also recognizes the
importance of historic and prehistoric site protection. While the preservation
statutes themselves may be limited by weaknesses in certain areas, their
enforcement potential may be increased by their function in tandem with
other laws:

Department
of Transportation Act (DOTA)39No program undertaken by the Federal Highway Administration,
Federal Aviation Administration, Urban Mass Transit Administration,
or the U.S. Coast Guard will be approved when it requires use of land
from a historic site, whether of national, State, or local significance,
unless there is no feasible and prudent alternative but to use such
lands, and unless the program includes all possible planning to minimize
harm to the historic properties (emphasis added). 40

National
Environmental Policy Act (NEPA)41Because NEPA's
Environmental Impact Statement (EIS) requirement applies to all proposed
major Federal actions that may significantly affect the quality of the
human environment, it.,has become an effective procedural statute that
is applicable to cultural resources preservation. 42
The EIS must be prepared prior to such proposed actions. Both NEPA and
NHPA apply only to Federal actions, and although these statutes neither
specifically prohibit activities that may ultimately result in damage
to or destruction of archeological resources nor require actions to
preserve cultural resources, the courts have usually considered NEPA
applicable to such resources, in that the natural environment includes
our "historic and cultural heritage". 43

American
Indian Religious Freedom Act (AIRFA)44This Act seeks to protect and preserve traditional Native
American, Eskimo, Aleut, and Hawaiian spiritual beliefs and practices
by providing access to ancient sites for these Native peoples. AIRFA
also provides for the use and possession of sacred objects by members
of the Native American Tribes. Archeological site protection is a Federal
activity related to AIRFA, since it directs the various agencies to
consult with Native traditional religious leaders in a cooperative effort
to develop and implement policies and procedures that will aid in determining
how to protect and preserve Native American cultural and spiritual traditions.
Section 10(a) of ARPA requires that uniform regulations be promulgated
for ARPA after consideration of AIRFA.

Federal
Collections Act of 196645This Act requires that Federal agencies attempt collection
of all claims for money or property damage arising out of activities
on Federal lands, including claims resulting from unauthorized or illegal
activities that damage or destroy cultural resources. Historic and prehistoric
sites have clearly been defined as "resources" under the Antiquities
Act, NHPA, and ARPA, and collection requires careful analysis by a professional
archeologist whose training includes methods of site appraisal, such
as provided in the uniform regulations for ARPA, that will translate
site damage into monetary terms and satisfy the evidentiary requirements
of a court case. 46

18
U.S.C. 641, Embezzlement and Theft47This
statute provides that, "Whoever embezzles, steals, purloins, or
knowingly converts to his use or the use of another, or without authority,
sells, conveys, or disposes of any record...or thing of value of the
United States or of any department or agency thereof... or whoever receives,
conceals, or retains the same with intent to convert it to his use or
gain, knowing it to have been embezzled, stolen, purloined, or converted
shall be fined not more than $10,000 or imprisoned not more than 10
years, or both; but if the value of such property does not exceed the
sum of $100, he shall be fined not more than $1,000 or imprisoned not
more than one year, or both." "The word, 'value' means face, par, or
market value, or cost price, either wholesale or retail, whichever is
greater." This statute, together with the malicious mischief statute,
may be used in coordination with ARPA to establish liability of looters
as well as their connected commercial agents or dealers in artifacts.
48

18
U.S.C. 1361, Destruction of Government Property (Malicious Mischief)This statute provides: "Whoever willfully injures or
commits any depredation against any property of the United States, or
of any department or agency thereof...shall be punished as follows:

If the damage to such property exceeds the sum of $100, by
a fine of not more than $10,000 or imprisonment for not more than ten
years, or both; if the damage to such property does not exceed the sum
of $100, by a fine of not more than $1,000, or by imprisonment for not
more than one year, or both.

The advantages to including this statute when litigating
against looters and vandals is clear, since its penalties may be applied
to partial site destruction or to destruction and/or removal of smaller
non-replaceable resources such as portions of pots, chipping tools,
and fabric remnants.49

18
U.S.C 1163, Embezzlement and Theft from Indian Tribal OrganizationsThis statute is similar to 18 U.S.C. 641, described
above, but it applies specifically to embezzlement and theft from Indian
Tribes. Alternative fines are also applicable to both the malicious
mischief and embezzlement/theft statutes. Pursuant to 18 U.S.C. 3571,
maximum fines may be imposed for convictions under 18 U.S.C. 1163, 18
U.S.C. 641, and 18 U.S.C. 1361, as follows:

If the defendant is an organization, the maximum fine
rates are doubled, although no term of imprisonment can be imposed.

18
U.S.C. 371, Conspiracy to Commit Offense or Defraud the StatesFor a discussion of the application of the Fifth Amendment
double jeopardy clause to subsequent criminal prosecutions and the possibility
of bar as to "same offense" charges, see Grady v. Corbin, 110
S. Ct. 2084 (decided May 29, 1990).

Companion
State Statutes

Research into existing State statutes that are applicable
to archeological resources protection was begun by examining a collection
of State laws contained in National Park Service (NPS) files. The list
obtained was expanded through a search of the LEXIS and the WESTLAW
computer services. Additional information was provided through correspondence
with participants in the NPS, Forest Service, and Federal Law Enforcement
Training Center who provided LOOT Clearinghouse information (see discussion
of LOOT Clearinghouse below). The chart of State statutes (Appendix
1) represents the several categories that were needed to identify
statutes applicable to cultural resources protection. Use of these categories
was particularly important in the computer searches because there are
no generalized cultural resources headings under which these laws can
be principally found. Finding these laws depends upon how an individual
State categorizes the nature of the protection or the type of offense
committed. The laws covering archeological resources protection rarely
are codified under a single heading. Additionally, it is likely that
new laws have been passed in State legislatures and existing laws may
have been re-titled or consolidated since June 1990, the date of this
research.

State statutes in force as of July 1990, fall into five
categories that reinforce or complement ARPA (See Appendix
1):

Restrictions on sales of antiquities or forgeries (14 States);

Laws to discourage activities that damage archeological resources
on private land (11 States);

Mirror ARPA statutes, including penalty provisions (37 States);

Penalties for disturbances of marked and unmarked burial sites (11
States). Eight states have reinterment statutes, but onlv two of these
also have an anti-disturbance statute; and

An additional seven states had pending legislation for
1989-90 sessions in one or more of the five categories, with the emphasis
of proposed legislation upon marked and unmarked burial sites. In addition,
several States have statutes providing protection to specific areas,
such as underwater salvage sites (10 States), caves (4 States), earthworks
(2 States), forts (2 States), ghost-towns (Colorado only), petroglyphs
or rock art (3 States), and State preserves (Iowa only).

Many States have statutes that establish State archeologists,
State historical agencies, involvement in cultural resources issues
by Native Americans through established advisory councils, and State
registers of historic places. There are also statutes that provide for
State cultural resources surveys, regulatory issuance of permits for
field investigations, obligations to report discoveries that may have
historic or prehistoric archeological significance, and protection of
the confidentiality of site locations.